SZNOM v Minister for Immigration
[2009] FMCA 628
•9 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNOM v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 628 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – s.424A Migration Act 1958 – relevant considerations – consideration to be given to an unarticulated claim – benefit of the doubt – real chance test. |
| Migration Act 1958, ss.414, 424A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 SZIWK v Minister for Immigration & Citizenship [2007] FCA 168 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 |
| Applicant: | SZNOM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1087 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 30 June 2009 |
| Date of Last Submission: | 30 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 9 July 2009 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1087 of 2009
| SZNOM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India where, he claims, he was an active member of a Christian-based charity called Vision in Action. He alleges that, as a result of his various charitable works, he was accused of trying to convert Hindus to Christianity and was attacked by Hindu members of the RSS and BJP.
The applicant claims to fear persecution in India because of his association with a Christian charity and because of his Catholic faith.
After his arrival in Australia on 7 July 2008, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 1 October 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 9 of the Tribunal’s decision (Court Book (“CB”) pages 77 – 82). Relevant factual allegations are summarised below.
In his application for a protection visa, the applicant claimed that:
a)he grew up in a village in Kerala and was raised in a very religious household. As a result, he became an active member in various youth wings of the Catholic Church;
b)he moved to New Delhi a few years after completing his studies and started a business as a film distributor. Around this time, he became interested in social work and joined a charitable trust called “Vision in Action”. The trust was involved in various charitable works such as blood donation, eye donation, camps, free education and arranging of counselling services for drug addicts;
c)some people misinterpreted this work as an attempt to convert Hindus to Christianity. On one occasion “they” were attacked by Hindus and the applicant’s left arm was cut, resulting in his hospitalisation for two weeks;
d)after this incident the applicant returned to his village in Kerala and, along with a friend, became involved in other charitable works. Among their activities, they helped drug addicts and alcoholics go to the Divine Retreat Centre which was a place run by Christian missionaries;
e)members of other religious groups, particularly Hindus from the RSS and the BJP, accused the applicant of trying to convert Hindus to Christianity and of taking blood from Hindus and giving it to Christians. As a result, there were religious riots and the Divine Retreat Centre was raided;
f)the applicant’s family was also attacked. He did not report the incident to the police as the police are linked with the BJP and the RSS. They also threatened to kill his family if he complained to the authorities;
g)after moving his parents to a safe place, the applicant left the country; and
h)he fears that members of the RSS and BJP will kill him if he goes back to India. The state authorities will not protect him because the issue is highly religious and they will not take any action against Hindu groups.
At the hearing before the Tribunal the applicant further claimed that:
a)he was an active member of the church in Kerala prior to leaving for New Delhi and was involved in various charitable activities such as organising blood donations, helping alcoholics and organising financial help for people in the community. He later stated that before he went to New Delhi he was involved in fundraising for the church and only became involved in the other activities after his work with Vision in Action;
b)he moved to New Delhi in June 2001 and became involved with Vision in Action which was a Christian-based charity. The charity had 6-7 people involved in it and operated in an office donated by a friend. Another friend gave money to help with the charity’s expenses;
c)the charity organised free lessons and taught basic educational skills to children in the slums but some political leaders objected to these lessons being held at the site of an old Hindu temple. The lessons were then moved, but some of the wealthy people in the community complained that the slum children were being diverted from the work which they did for them;
d)he was attacked because he lived near the site of the classes and because his vehicle was seen there. He was told by opponents that if he did not leave New Delhi he would be attacked;
e)he was not sure whether the charity was still operating but all of its members were fearful;
f)in May 2007 he returned to his village in Kerala and continued working for Vision in Action. Specifically, he publicised the blood donation camps and organised transport for the old and poor. He also directed alcoholics to the Divine Retreat Centre, which caused concern amongst some of the local people involved in alcohol distribution;
g)things at the Divine Retreat Centre are not always reported and people have died there;
h)sometime in 2007, after returning to Kerala, a group of people from an opposition party took him out of his home and slapped him on the face. They told him to stop the work he was doing for the charity and not to contact Hindus. Two weeks after this, stones were thrown on the roof of his house;
i)in December 2007 he allowed a small family to live in his home for about a week. Later, one of them came back and brought along other people who started abusing the applicant. The applicant’s parents objected to what these people were doing and were physically assaulted as a result;
j)in December 2007 the applicant was also approached several times by people who would offer to buy him a drink and would ask him why he helped Hindus. He realised that these people could be members of the BJP and RSS;
k)the police will not protect him as they are allied with political parties and will support whoever gives them money;
l)he fears that thugs hired by Hindu groups will harm him and he cannot relocate because those groups are connected throughout Kerala. Further, he cannot move to a state with a large Christian population because Christians are being attacked and no state is safe;
m)he is concerned about the bombings in Delhi and India generally; and
n)since his arrival in Australia, he has been to a Catholic church in Parramatta about two to three times. He has not been to church often because it is financially difficult for him to attend and he does not wish to attend an English service.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal accepted that the applicant moved to New Delhi in 2001 and, from 2005, became involved in a small group of 6-7 people engaged in charitable work giving basic literacy education to children in the slums. The Tribunal did not accept that the applicant was also involved in blood donation, eye donation, camps or counselling for drug addicts as, having made such claims in his statement to the Minister’s department, he did not repeat them at the hearing;
b)the Tribunal accepted that the group was told to cease their activities on two occasions, first by members of a local Hindu community and secondly by wealthy members of the community. However, the Tribunal did not accept that the applicant was attacked and hospitalised for two weeks as claimed in his written statement as, at the hearing, he was not able to give detailed evidence about the attack and did not make claims that he was hospitalised. The Tribunal did not accept that he was attacked or threatened with serious harm while in Delhi or that such complaints as were made against the group, and the verbal abuse he may have suffered, amounted to persecution within the Convention definition;
c)the Tribunal also accepted that the applicant and his friends may have taken steps to establish Vision in Action but concluded that the organisation was either “a shell” or only engaged in charitable activities for a short period of time. In this respect, the Tribunal noted that the applicant had little knowledge of the organisation’s current situation including when it was registered, whether its bank account was still operating, whether it had a constitution or rules and whether it was still operating as a charity. The Tribunal found that the applicant’s involvement, if any, was fairly minor and that once he returned to Kerala he did not continue to have any interest in the group;
d)the Tribunal accepted that the applicant returned to his village in Kerala in May 2007 and may have been involved in some charitable work though his local Catholic church but did not accept that he continued to perform charitable works on behalf of Vision in Action, noting that:
i)the applicant provided to the Tribunal a letter entitled “Vision in Action” signed by the general secretary of the trust. The letter was addressed to the applicant in New Delhi, was dated 21 January 2008, gave a Kerala address on its letterhead and had a Delhi address at the bottom. The Tribunal found that these details were not consistent with the applicant’s claim that he returned to his village in May 2007 and continued working for Vision in Action; and
ii)when questioned about his activities in Kerala for Vision in Action, the applicant was not able to confirm the level of involvement claimed in his written statement and his oral evidence. He acknowledged that he had no connection with the Divine Retreat Centre or its activities, having only directed affected persons in his village there. He also stated that he was not actually involved in blood donation activities or the blood donation camps as claimed, having only publicised the camps, kept blood group details and organised transport for the old and poor.
In light of the above, the Tribunal formed the view that the applicant’s claims had been highly exaggerated and that his charity work in Kerala had been minimal, if anything at all;
e)the Tribunal accepted that the applicant and his family may have been assaulted or threatened but it did not accept that this was for reasons of the applicant’s charitable activities or his religion as the claimed motive for the attack did not appear to flow from the circumstances of the incident;
f)the Tribunal described as implausible the applicant’s claim that he was targeted by local alcohol suppliers. It did not accept that he had had any meaningful role in advising alcoholics about the services of the Divine Retreat Centre which, according to country information, was well known and highly publicised throughout Kerala;
g)based on its findings summarised above, the Tribunal did not accept that the applicant had been assaulted or mistreated in India for reasons of his association with a Christian-based charity or imputed conversion activities or that if he returned to India he would face a real chance of persecution for either of these reasons;
h)the Tribunal considered the applicant’s claim that he feared harm in India due to an increase in violence, bombings and general insecurity in India but concluded that his fear, while understandable, was highly generalised and not Convention-related;
i)the Tribunal accepted that the applicant was a Roman Catholic and that he was a regular and ordinary member of a Catholic congregation in Delhi and Kerala. However, the fact that the applicant had attended church in Australia on few occasions indicated to the Tribunal that he was not as committed and devout as he claimed;
j)the Tribunal found that the applicant would not face a real chance of persecution for reasons of his Catholic faith as an ordinary member of the congregation, noting that:
i)he would be returning to a state in which there is a large Catholic community and which, despite some recent isolated incidents involving attacks on Christian churches, is generally regarded as religiously tolerant and harmonious;
ii)country information indicates that the present government in Kerala has demonstrated a commitment to protect all its residents on a non-discriminatory basis;
iii)country information indicates that the Hindu nationalist movement has little influence in Kerala and there was no information before the Tribunal suggesting that the police in Kerala are influenced by Hindu groups; and
iv)if the applicant was threatened by an individual or group because of his Catholic faith, he would be able to access an effective and reasonable level of state protection.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)The Tribunal did not give to the applicant before the hearing the independent information that it had about religious tolerance and the Indian state of Kerala. The Tribunal used this information (RRT decision record pages 9 to 14). This was against section 424A of the Migration Act 1958.
(2)The decision of the Refugee Review Tribunal was effected by jurisdictional error in that the Tribunal did not take into account certain relevant consideration or ‘integers’ central to the applicant[’s] claims.
(3)The Tribunal thereby failed to carry out its review function and to exercise jurisdiction.
(4)The member of the Tribunal erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the applicant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that:
(a) it failed to properly apply the consideration that the applicant for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant[’s] claims were plausible, which was the case here.
(5)The applicant satisfies the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
In his supporting affidavit filed on 5 May 2009 the applicant asserts that the Tribunal failed to analyse properly the future harm he would face if he returned to India and thereby failed to apply the “real chance” test.
At the hearing the applicant reiterated many aspects of his claim to fear persecution in India should he return and argued against the correctness of the Tribunal’s conclusion on the merits of his visa application.
Tribunal breached s.424A
Section 424A of the Act relevantly provides:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; …
The independent information to which the applicant refers, set out on pp.9-14 of the Tribunal’s decision record, is concerned with the political and social situation in Kerala and particularly the issues of religious tolerance in that state, recent anti-Christian violence in India, state protection and the Divine Retreat Centre. It is clear that such information falls within the exception to s.424A’s operation found in s.424A(3)(a): Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572. That means that the Tribunal was under no obligation to notify the applicant of the information in question and no breach of the section is disclosed by reason that it did not do so.
Tribunal did not take into account relevant considerations
The particulars of this allegation are set out in connection with the third allegation in the application. Those particulars state:
(a)The Tribunal did not consider the applicant who had been under immense and intimidating pressure from Hindu fundamentalist BJP, RSS and other Hindu nationalist groups.
(b) In relation to above the Tribunal did not consider the applicant claims that his distinguishable position in Catholic Church and secretary of the CLC resulted in threats by the Hindu fundamentalist.
A review of the Tribunal’s exposition of the facts alleged by the applicant and its consideration of that evidence, summarised above at [7]-[8] and [9] respectively, discloses that the first matter particularised cannot be made out. The Tribunal considered the applicant’s various allegations of having been attacked, threatened or pursued by religious or political Hindu activists. The fact that the Tribunal did not draw from that evidence the conclusions which the applicant pressed upon it does not mean that the Tribunal failed to consider that information.
As to the second particular, it should first be noted that the Tribunal’s decision record discloses no allegation having been made by the applicant that his position as secretary of the CLC, referred to in his application for a protection visa and quoted at para.24 of the Tribunal’s decision record, was the source of any threats by Hindu fundamentalists. That statement discloses that he was secretary of the CLC while he was at school and that his claimed problems only occurred after he left Kerala for New Delhi when he was an adult. His evidence to the Tribunal did not propound a different version of events.
As to his “distinguishable position in Catholic Church”, it is far from clear what this allegation is intended to mean. Although the applicant did say in response to the Tribunal’s questioning about the practicability of relocation that he could not move to another state with a large Christian population because Christians were being attacked and no state was safe, the essence of his claim to fear persecution arose not out of him being a Christian of some prominence but out of his charitable activities and social work. The Tribunal considered these allegations in detail and, again, the fact that the Tribunal reached conclusions in respect of those allegations contrary to the ones which the applicant sought does not demonstrate that the Tribunal did not take those matters into account. As the summary of the Tribunal’s decision record set out above at [7]-[9] discloses, it clearly did.
For the sake of completeness, I do not conclude that, in the matters he raised with the Tribunal, it can be discerned that the applicant was making a claim to have a well founded fear of persecution by reason of his “distinguishable position in Catholic Church”. In this connection, it should be acknowledged that the Tribunal is required under s.414 of the Act to consider the claims of the applicant; to make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 259 [42]. Indeed, the Tribunal should not limit its considerations to the claims articulated by the applicant if additional claims are raised “squarely” on the material available to the Tribunal: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 at 18-19 [58]. Even so, in NABE’s case the Full Court of the Federal Court held that before the Tribunal will be obliged to consider an unarticulated claim, it must emerge clearly from the materials (at 22 [68]) and a claim requiring such consideration will not depend for its exposure on constructive or creative activity by the Tribunal (at 19 [58]). As
Allsop J said in NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 at [15]:
Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
As already noted, I do not conclude that any claim related simply to the applicant’s prominence as a Christian of the sort particularised in para.(b) quoted above at [15] could be said to have been raised in such a way that the Tribunal was under an obligation to consider it. It was not clearly articulated and did not arise clearly from the material before the Tribunal. Indeed, it does not appear to have been raised at all.
Tribunal failed to carry out is review function
This ground, although ostensibly an independent ground, is actually part of the second allegation made out in the application. For the reasons discussed in connection with that aspect of the matter, this allegation discloses no jurisdictional error on the part of the Tribunal.
Tribunal failed to give the applicant the benefit of the doubt
The authorities do indicate that a liberal attitude should be taken to considering the credibility of an applicant’s claims but the Tribunal is not obliged to accept such claims uncritically, as Nicholson J paraphrased the reasons of Beaumont J in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 in SZIWK v Minister for Immigration & Citizenship [2007] FCA 168. The benefit of the doubt need not be extended to an applicant if the Tribunal is confident in its conclusions regarding the credibility of that person’s account. That is the case here. The Tribunal paid heed to the applicant’s claims and allegations, weighed them, and disbelieved them. There was no occasion for the applicant to be given the benefit of the doubt in the sense discussed by the cases.
Further, this ground essentially invites the Court to review the Tribunal’s findings on the merits of the application before it. The Court is not empowered to do this. It is for the Tribunal to reach conclusions on the facts and the merits of an application and it is for the Court to ensure that the Tribunal correctly applies the law and applies correct procedures in the course of its review.
This ground discloses no basis upon which the Tribunal’s decision might be set aside.
Applicant satisfied the Convention tests and the Tribunal did not consider the Convention definition of refugee
This ground also invites the Court to review the Tribunal’s decision on the merits of the applicant’s claim for a protection visa. For the reasons already given, the Court is unable to do this and no jurisdictional error on the part of the Tribunal is disclosed on this account.
Linked with that allegation is a further allegation that the Tribunal did not consider the applicant’s claims, presumably in the context of the Convention test or, possibly, at all. Clearly the Tribunal did consider the applicant’s claims to be a refugee and it had proper regard to them, as the summaries above at [7]-[9] disclose. As to whether it considered those claims in the context of the Convention tests, paras.9-18 of its decision demonstrates that the Tribunal correctly understood what those tests were and what they required. However, as the applicant was disbelieved as far as his core claims were concerned, the Tribunal had no occasion to consider whether the applicant satisfied those tests. As to the possibility of a subsidiary issue of fear of persecution arising out of the applicant’s Christianity simpliciter, this was appropriately addressed by the Tribunal by reference to the level of state protection available to the applicant in Kerala: Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 per Gleeson CJ, Hayne and Heydon JJ at 8-9 [19]-[20].
Tribunal failed to apply “real chance” test
The applicant alleges that the Tribunal failed to apply the real chance test because it failed properly to analyse the “future harm” he might face were he to return to India. The simple answer to this allegation is that the Tribunal did, indeed, consider the future harm which the applicant might suffer upon a return to India and rejected his claims to have been assaulted or mistreated in India for reasons of his association with a Christian-based charity or imputed conversion activities. It further found that his claim to fear harm in India due to an increase in violence, bombings and general insecurity was, while understandable, highly generalised and not Convention-related. Moreover, the Tribunal concluded that were the applicant to return to Kerala he would be able to access an effective and reasonable level of state protection. That is to say, he would not face the future harm he claims to fear.
Further, having reached these conclusions, the Tribunal went on to find expressly that it did not accept that the applicant would face a real chance of persecution if he returned to India in the foreseeable future for any Convention reason, a finding which was informed by the Tribunal’s accurate understanding of the “real chance” test as revealed by its discussion of that test in para.16 of its decision record.
Submissions at hearing
The matters canvassed by the applicant in his oral submissions to the Court were characterised by challenges to the Tribunal’s decision on the merits of his application. As already discussed, such matters cannot ground a finding of jurisdictional error.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 9 July 2009
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